Access to Lawyer in Police Custody

Taylor & Kelly were instructed by JUSTICE, an independent organisation committed to law reform and improvement in human rights awareness, to act on their behalf as Interveners before the United Kingdom Supreme Court in the case of Cadder v  HM Advocate.



Lord Hope of Craighead said that the construction of the Salduz decision favoured by the Appeal Court in McLean was untenable.  There was no room in the approach of the Strasbourg court for one rule operating for countries in Eastern Europe and exceptions for those on Western fringes such as Scotland.  Lord Hope thought that the regime as presently understood was a ‘systemic departure’ from the rule propounded by the Grand Chamber in Salduz v Turkey:

“The conclusion that I would draw as to the effect of Salduz is that the contracting states are under a duty to organise their systems in such a way as to ensure that, unless in the particular circumstances of the case there are compelling reasons for restricting the right, a person who is detained has access to advice from a lawyer before he is subjected to police questioning.” (para.48)

Lord Hope surveyed the jurisprudential changes ringing around Europe in light of the ruling from the Grand Chamber.

As for the effect of the judgement, Lord Hope held that it was not open to the Supreme Court to limit the retrospective effect of its decision as a matter of law.  That said, he did make it clear that old cases where the time limit for appeal had expired, or an appeal had been taken and disposed of, could not now come back to the court founding upon this judgement.  Those cases will now have to be considered by the Scottish Criminal Cases Review Commission.

Lords Rodger of Earlsferry said that the safeguards for accused persons relied upon by the Crown in oral argument were “beside the point”.  Lord Rodger looked at the  historical safeguards which applied to protect the suspect’s right to silence  under the law of Scotland.  The position at the time of the hearing of the appeal was that police could question a suspect without the protection of legal advice being tendered and that any replies during that would be held to be admissible.  Lord Rodger was of the view that a fair procedure, which is at the heart of Article 6, must have close to that heart an implied right of access to a lawyer:

“For this reason, in my view there is not the remotest chance that the European Court would find that, because of the other protections that Scots law provides for accused persons, it is compatible with article 6(1) and (3)(c) for the Scottish system to omit this safeguard – which the Committee for the Prevention of Torture regards as “fundamental” – and for suspects to be routinely questioned without having the right to consult a lawyer first.  On this matter Strasbourg has spoken:  the courts in this country have no real option but to apply the law which it has laid down.”

 As for the effect of the judgement Lord Rodger was of the view that it did not have application to completed cases: that was a matter for the Scottish Criminal Cases Review Commission.

Lord Brown’s brief opinion mentions the re-configuration of interests:

“It is clearly Strasbourg’s judgment that whatever in the result may be lost in the way of convicting the guilty as a result (wholly or partly) of their voluntary admissions is more than compensated for by the reinforcement thereby given to the principle against self-incrimination and the guarantees this principle provides against any inadequacies of police investigation or any exploitation of vulnerable suspects.”

In response the Scottish Parliament on 27th Ocotober debated and passed the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 asp 15.  Read the Explanatory Note here. Read the parliamentary debates here.

Read the GBA briefing on the Bill here. Read the JUSTICE briefing on the Bill here

This case concerned the rights of detainees or suspects to legal advice prior to or at interview with the police.  Previous understanding of Section 14 and 15 of the Criminal Procedure (Scotland) Act 1995 was that for the length of detention (pre-arrest) up to 6 hours, police officers could, with impunity, deny access of a suspect to a lawyer and vice versa.

The case of Salduz v. Turkey represented a development of the law and an understanding of the application of Article 6(3)(c) of the European Convention on Human Rights.  This provides for certain minimum rights for those charged with criminal offences including the right:

c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

In the Salduz case, a Grand Chamber decision of the European Court of Human Rights it was held that “as a rule” suspects should be entitled to legal advice from the point of their detention.

In Scotland this sparked many challenges to the denial of that right.  In the case of McLean v HM Advocate, Seven Lords Commissioners of Justiciary sat in the Appeal Court to determine upon the application of that case to Scots Law.  They unanimously held that Scots Law was impervious to this declaration.  The High Court of Justiciary severely circumscribed the scope of that decision and upheld the limited rights of suspects.

The Thomson Committee on Criminal Procedure in Scotland (Cmnd.6218, October 1975) had recommended (with little explicit reasoning in support) the exclusion of lawyers from the police station at this most important time.

They described the configuration of various interests as difficult but in their assessment expressed concern about “creating a situation in which criminals can render the investigation of their crimes difficult or even impossible merely by standing on their rights.” (para.2.03)

The recommendation against lawyers being granted access to provide advice to suspects is contained in para. 5.08:

…whereas the arrestee will be entitled to an interview with his solicitor in the police station, the detainee’s right will be confined to having his solicitor advised that he has been detained. It will be a matter of police discretion whether to allow the detainee an interview with his solicitor. We consider that such a discretion is necessary at the stage of investigation prior to arrest.

In para.7.16 this is repeated:

Presence of a solicitor

7.16 Although a person who has been charged with an offence is entitled to an interview with a solicitor, we recommend that a solicitor should not be permitted to intervene in police investigations before charge. The purpose of the interrogation is to obtain from the suspect such information as he may possess regarding the offence, and this purpose might be defeated by the participation of his solicitor.

The High Court of Justiciary in the case of McLean held that the imprimatur of the legislature in enacting Sections 2 and 3 of the Criminal Justice (Scotland) Act 1980 (the predecessors of Sections 14 and 15) was to be given considerable deference.

Coming after the case of McLean, Mr Cadder’s appeal was refused leave of the High Court to proceed.  An application to review that refusal of leave was itself denied.  His application for leave to appeal to the United Kingdom Supreme Court was not given a hearing.  He applied direct to the United Kingdom Supreme Court.

On 24th, 25th and 26th May 2010,  Seven Justices of the United Kingdom Supreme Court convened to hear Mr Cadder’s appeal and determine upon the Convention compatibility of the exclusion of solicitors by the police to detainees at the outset of their detention.  Their decision is expected on 26th October 2010.

On behalf of JUSTICE the written intervention was supported with oral submissions in the course of the appeal and concentrated upon:

  1. The decision of the European Court of Human Rights Grand Chamber in Salduz v. Turkey.
  2. A comparative survey of other countries in Europe on the right to legal representation at, or prior to, police interview.
  3. A comparative study of other English speaking jurisdictions.
  4. A survey of that right (to legal representation at the outset of detention) within the international community.
  5. A comparison between the work of the Thomson Committee on Criminal Procedure in Scotland (Cmnd.6218, October 1975) with the report of the Royal Commission on Criminal Procedure in England and Wales (Cmnd.8092, 1981).
  6. The remedies which could be afforded by the United Kingdom Supreme Court following upon a finding of Convention incompatibility.

JUSTICE has recently published the written intervention which can be read here.

Read the article by Jodie Blackstock, barrister and senior legal officer in EU and Home Affairs and Justice in Guardian Law 23rd May 2010 here.

Read the report of the Supreme Court proceedings in the Herald 24th May 2010 here and in the Sunday Herald on 20th June 2010 here

Crown Office are reported to have issued guidlines to police in anticipation of the ruling going against it.  Read The Herald here.

BBC News here

and the Sunday Herald here

Read the interim guidelines published by the Lord Advocate to Chief Constables here

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